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Matters Sub Judice

Volume 612: debated on Thursday 11 May 2000

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3.30 p.m.

My Lords, on behalf of my noble friend the Leader of the House, I beg to move the Motion standing in her name on the Order Paper.

The sole purpose of the Motion is to give effect to a recommendation of the Procedure Committee. Your Lordships will remember that the House agreed the Procedure Committee's report on 19th April this year. This resolution, therefore, is a direct consequence of the House's pre-existing agreement to that report.

As long ago as December 1963 the House agreed that the practice governing Motions and Questions relating to matters which were sub judice should be similar in both Houses. The Joint Committee on Parliamentary Privilege, chaired by the noble and learned Lord, Lord Nicholls of Birkenhead, endorsed that decision in 1999 on the basis that it was obviously desirable that each House should be in the same position. The Joint Committee noted that the practice was not the same in both Houses. The practice in your Lordships' House in fact restricts opportunities for debate to a greater extent than in another place. The Joint Committee therefore recommended that the two Houses should pass new resolutions to modernise existing practice and to harmonise the practice in both Houses.

The rule, of course, is not absolute. In the Commons it may be waived at the discretion of the Chair. In this House there is no general power of waiver, but since 1995 a limited power of discretionary waiver has been given to the Leader of this House. The Leader may exercise that limited power to permit discussion of matters relating to any ministerial decision and matters concerning issues of national importance like the economy, public order or the essentials of life. I repeat: that has been the position in this House since 1995. The Joint Committee recommended that a general discretion to waive the sub judice rule, comparable to that of the Speaker in the Commons, should be introduced in this House.

Perhaps I may make one or two further comments. It is proposed, in the new edition of the Companion to provide that any Member of this House proposing to refer to a matter which is sub judice must give the Leader at least 24 hours notice. Secondly, a decision by the Leader as to the exercise of her discretion will not be open to challenge. Obviously, the Leader does not act in a political or partisan capacity in those circumstances, but as guardian of the procedures of the whole House. I beg to move.

Moved to resolve, That, subject to the discretion of the Leader of the House, and to the right of the House to legislate on any matter or to discuss any delegated legislation, the House in all its proceedings (including proceedings of committees of the House) shall apply the following rules on matters sub judice:

(1) Cases in which proceedings are active in United Kingdom courts shall not be referred to in any motion, debate or question.

(a) (i) Criminal proceedings are active when a charge has been made or a summons to appear has been issued, or, in Scotland, a warrant to cite has been granted.

(ii) Criminal proceedings cease to be active when they are concluded by verdict and sentence or discontinuance, or, in cases dealt with by courts martial, after the conclusion of the mandatory post-trial review.

(b)(i) Civil proceedings are active when arrangements for the hearing, such as setting down a case for trial, have been made, until the proceedings are ended by judgment or discontinuance.

(ii) Any application made in or for the purposes of any civil proceedings shall be treated as a distinct proceeding.

(c) Appellate proceedings, whether criminal or civil, are active from the time when they are commenced by application for leave to appeal or by notice of appeal until ended by judgment or discontinuance.

But where a ministerial decision is in question, or in the opinion of the Leader of the House a case concerns issues of national importance such as the economy, public order or the essential services, reference to the issues or the case may be made in Motions, debates or Questions.

(2) Specific matters which the House has expressly referred to any judicial body for decision and report shall not be referred to in any Motion, debate or Question, from the time when the resolution of the House is passed, until the report is laid before the House.

(3) For the purposes of this resolution—

(a) Matters before coroners courts or fatal accident inquiries shall be treated as matters within paragraph 1(a); and

(b) "Question" includes a supplementary question.—(Lord Williams of Mostyn.)

My Lords, I wonder whether the Minister can assist me in one matter relating to paragraph (1)(b)(i) and civil proceedings. It is there provided that,

"Civil proceedings are active when arrangements for the hearing … have been made".
I take it that "civil proceedings" applies to the civil jury trial as well as to the non-jury trial. A civil jury trial would encompass defamation and malicious prosecution by way of example. Does the Minister see any difficulty in the sub judice rule applying so late that it is after arrangements have been made for trial in that type of case?

My Lords, yes; and in answer to the second question, I do not think so.

My Lords, we welcome this Motion because it makes common sense that the sub judice rule should be the same, as far as possible, in both Houses of Parliament. However, in the longer term are there not issues that we should look at again?

Under the present rules, your Lordships' House will continue to be unable to discuss issues which the media are free to report on and discuss. Under the Contempt of Court Act 1981, the media are guilty of contempt of court only if they publish statements which are intended to interfere with the course of justice or which create a substantial risk that the course of justice will be seriously impeded or prejudiced. That is far less restrictive than the parliamentary sub judice rule. I wonder therefore whether we should look at the issue again in due course to consider whether the parliamentary rule should be relaxed and perhaps aligned with the contempt rule. It seems anomalous when we in your Lordships' House and our colleagues in another place cannot discuss issues which are being freely and lawfully discussed in the press. It is ironic that, when we have introduced a statutory right to freedom of speech under the Human Rights Act, we continue to be limiting our own freedom of speech in this way.

My Lords, I take the point of the noble Lord, Lord Goodhart. Of course, the media are in a different position to your Lordships' House. It is axiomatic that the world at large pays a good deal more attention to what we say than to anything that might appear in the vulgar press.

There is an underlying point in what the noble Lord says. I imagine your Lordships may well want to return to this matter after a trial period. Of course, the Liaison Committee met earlier this week and agreed the desirability of setting up a Joint Committee on Human Rights. If that Joint Committee is set up, that aspect of the noble Lord's question may be something it wishes to take on board and discuss.

My Lords, we are taking a valuable step to align procedure in this House with procedure in another place. I take the point made by the noble Lord, Lord Goodhart, that we may have to come back to this matter. If we do, it is important that we and another place come back to it together. To end up again in a situation in which there are two different sub judice rules depending upon which House one is in would not be sensible. I hope my noble and learned friend will keep that in mind.

My Lords, my noble friend Lord Richard is absolutely right. In fact, not for the first time, if this resolution is passed today we shall be in advance of another place. But there is obvious sense in having the symmetry to which my noble friend referred.

My Lords, I too accept that it would be desirable to have the same procedure in both Houses. But given that there is no Speaker in this House and that the Leader of the House occupies a different position, obviously they cannot be identical.

Can the Minister reassure me that the words,
"subject to the discretion of the Leader of the House".
mean only that the Leader of the House can give a waiver if he or she thought it desirable, but that it is not possible for the Leader of the House to exercise his or her discretion and judge something to be sub judice when the Clerks of the House take a different view? Will the noble and learned Lord also confirm that in extradition proceedings it will be possible for Members of this House, in between stages in a case, to question the Home Secretary's quasi-judicial position?

My Lords, on the question of waiver, the noble Lord, Lord Lamont, is quite right: that is intended as a further protection for the rights of this House; in other words, discussion would not be curtailed. In my own experience, the advice of the appropriate advisers is always taken by the Leader of the House. I believe that that has also been the experience of the noble Lord.

As to extradition, it seems to me that every issue of fact and of law would have to be considered on a case-by-case basis. I know that the noble Lord did have questions that he wanted to put in connection with a recent, fairly well-known extradition case and that there were occasions when he was not able to do so. Ultimately, of course, we had quite a lengthy debate which he instigated and which I believe was valuable to all of us.

My Lords, this Motion obviously comes before your Lordships with potent backing from the Joint Select Committee chaired by my noble and learned friend Lord Nicholls, backed by the Procedure Committee of your Lordships' House. Nevertheless, I hope that your Lordships will allow me to raise some questions about it. I hope that they have percolated through to the noble and learned Lord I asked that the noble Baroness the Leader of the House should be given notice of them.

Last night your Lordships debated at length an impasse which we seemed to have reached by not taking note at the time of the constitutional implications for the privileges of the two Houses of the setting up by the Prime Minister of the Nolan Committee. I suggest that we should at least take notice of the implications involved in this Motion.

The sub judice rule is of course the complement of what we were discussing last night—the reverse of an obverse. The Houses claim privileges; that is to say, certain specific rules to enable them to carry out effectively their constitutional duties as Houses of Parliament. However, in the past that has led them into collision with courts of law, which were equally trying to carry out their constitutional duties to adjudicate on the rights of individuals seeking recourse to judicial remedies. The matter came to a crisis in the middle of the last century, as your Lordships will remember, in the famous case of Stockdale v Hansard, which ended most unfortunately with, on the one hand, the House of Commons committing the sheriffs of Middlesex, who were enforcing the decrees of the law courts and, on the other hand, the law courts committing the Officer of the Serjeant-at-Arms, who was carrying out the decrees of the House of Commons. It was such a scandal that, thereafter, both parties retreated from their extreme positions. Parliament recognised that the courts of law should proceed within their own jurisdiction by observing the sub judice rule, while the law courts agreed to respect the privileges of Parliament.

As was pointed out in previous interventions, it is obviously desirable that both Houses should operate in the same way as far as concerns sub judice discretion. But there has to be some inherent difference. As I read the structure of what is proposed, I see that sub judice applies generally under paragraph (1) of the Motion, "where proceedings are active". However,
"where a ministerial decision is in question",
and so on, the rule may be waived and that is subject, at the outset, to the unchallengeable discretion of the Leader of the House.

What led the Joint Select Committee into that mystery as to whether the Leader of the House was the right person was the fact that in the House of Commons the Speaker has, I think to general satisfaction, the power of waiving the sub judice rule. But the Speaker of the House of Commons is by no means in a similar position to the Leader of your Lordships' House. The Speaker of the House of Commons is not the Leader of the House; that is a political appointment. The Speaker of the Commons is elected by the whole body of electors. It was noticeable that the present Speaker, a woman, who has operated, I believe, to general admiration, was elected by a predominantly Tory House of Commons—that is, predominantly Tory and predominantly men. However, the Leader of your Lordships' House is not in the same position at all. She is in a similar position in many respects to the Leader of the House of Commons; in other words, it is a political appointment and she is a member of the Government, charged with seeing that the Government's business gets carried through the House. That is a vital difference.

The intention of this Motion is to give the noble Baroness an additional task, an additional loyalty; namely, as the vindicator of your Lordships' right to debate. That sort of hybrid quality is not unknown to our constitution. Ever since 1923, the Law Officers have recognised a dual loyalty. I am sure that the noble and learned Lord the Attorney-General will confess to his schizophrenia in that respect. But is it necessary to add to the schizophrenia of the Leader of the House? Would it not be preferable, instead of giving her an absolute and unchallengeable discretion, to leave the matter in the hands of your Lordships, with the Leader of the House providing guidance, as she does on so many other matters, but with the decision, the responsibility, remaining with the general body of your Lordships?

The matter is particularly accentuated by the terms of this Motion. I refer to the words,
"where a ministerial decision is in question".
That raises the question of judicial challenge to a ministerial decision. Is it really desirable that your Lordships should debate and pre-empt, or the other place debate and pre-empt, the decision of the appropriate court of law? Is it not inherently objectionable that the Leader of the House, a Member of the Cabinet, should have to decide whether her colleagues' decision, which has been challenged in a court of law, should nevertheless be debated in Parliament in pre-emption to the decision of the court?

We should at least be alive to where we are going constitutionally. I therefore presume to lay those considerations before your Lordships.

My Lords, I hesitate to become involved in an argument between two lawyers as eminent as those who are speaking at the present time. I take totally the important point which my noble and learned friend Lord Simon has made on this issue.

However, those of us who have been at one or the other end of the building over the past 40 years or so will know that debates have taken place which were cringe-making in the extent to which they were clearly wrong in relation to proceedings which were before the courts. The provision—my noble and learned friend does not disagree with the broad provision—that we are discussing is, I believe, something which most, if not all, noble Lords would support.

The issue raised by my noble and learned friend Lord Simon is a real one. However, I suggest that it is one with which this House is already familiar. I consider that the position that is suggested for the noble Baroness the Leader of the House under the new provision is analogous to the position of the noble and learned Lord the Lord Chancellor in that he also is a Member of the Cabinet and a party Member. He is able to separate those two situations when dealing with matters where there is a potential conflict of interest.

In recent times the traditional dual role of the Leader of the House has been almost identical to the role we are discussing; namely, that of a party politician who at the same time is an Officer of the House as a whole and loyal to the House as a whole. In my limited experience I do not believe that that has normally been challenged and nor has it caused great problems. I believe that there is a need to qualify the provision we are discussing, but unless we decide to have a Speaker, which I personally would deeply regret, I believe that it could work perfectly well with the Leader of the House continuing to—I was about to say "wear two hats", but for ladies that would be offensive—act in those two capacities of being a party politician (we understand that totally) and being perfectly competent to undertake the responsibility I am discussing.

My Lords, I had no intention of speaking in this debate. My only qualification to do so is not a legal one but my position as Leader of the Opposition. I also had no intention of speaking in the debate because the Motion gives effect to a Motion which has already been agreed by this House on a Procedure Committee report, which gave effect to a decision made by the Joint Committee which has already been mentioned.

However, as the noble and learned Lord, Lord Simon of Glaisdale, has raised the extremely important matter of the role of the Leader of the House, it is right that I should say a few words which are broadly in agreement with the comments of the noble Lord, Lord Marsh.

Having said that, as this Motion is not time-critical, I am sorry that the noble Baroness the Leader of the House is not present to move it. I do not mean that comment to be at all offensive. I am simply sorry that the noble Baroness is not present to say that she understands her position to be that described by the noble Lord, Lord Marsh, which is also my perception. If the Deputy Leader of the House, the noble and learned Lord the Attorney-General, says that that is the position, he will be putting words into her mouth. I rather regret that; I think it would be better if the noble Baroness had been able to say that herself.

The noble Baroness as Leader of the House has a dual role as a Cabinet Minister—she is also Minister for Women—and as the Leader of the Whole House. I believe, and certainly hope, that she has no difficulty in fulfilling that role.

On the matter of her discretion, I ask my next question purely for clarification. Am I right in thinking that she will seek advice from the Law Officers on this matter—perhaps the noble and learned Lord the Attorney-General himself, or, indeed, the noble and learned Lord the Lord Chancellor? On matters of political importance, which perhaps concern a ministerial decision, or another body in which the Government have a role or responsibility, will the noble Baroness widen the consultation to take into account the views of the usual channels or of the Opposition? It would be useful to be given a view on that. If the noble and learned Lord the Attorney-General has difficulty in answering that question—I am sure that that is not the case and that he will have discussed the matter with the noble Baroness—I should be happy to receive a reply in writing.

My Lords, before the noble and learned Lord replies, I hope that I may ask two simple questions which I think relate to this discussion. First, do the rules of the Commons include 24-hours' notice, as do these rules? Secondly, what happens if the Leader of the House takes a different decision from the Speaker? I ask this because, if I remember rightly, when the Pinochet case arose there was an attempt to raise the matter in this House and the House was told that it was sub judice. On that same day the Commons discussed it. I may be wrong but I think that is what happened. I wonder whether the two decisions could diverge and, if so, what happens?

My Lords, on the 24-hour matter I have a small, practical question to ask as regards exactly how strictly that will be interpreted. If it is strictly interpreted, a question could not be raised after three o'clock on a Wednesday in a normal working week until the following Monday. That gives a 92-hour blanket of silence. As matters of public order are specifically listed, and public order is most imperilled, as a rule, at weekends, that may be a relevant consideration.

My Lords, the present rule requires the 24-hour notice to be given in respect of a much more limited discretion. Of course the 24-hour notice question is proposed to be included in the new edition of the Companion. I dare say that there will be an opportunity for the question to be raised on that occasion.

I return to the matter on which I tried to be helpful when the debate began. As the noble Lord, Lord Strathclyde, pointed out a moment ago, the House has already made the decision we are discussing. What move today simply concerns the means whereby the decision, which has already been assented to, may be put into effect.

The noble and learned Lord, Lord Simon of Glaisdale, raised some questions are plainly of importance, as the noble Lord, Lord Marsh, pointed out. But all these issues are very fully ventilated and debated, should your Lordships wish to see them, in volume 1 of the report of the Joint Committee on Parliamentary Privilege, which of course your Lordships regard with a good deal of respect. It was printed on 30th March this year and in it your Lordships can see the whole of the debate referred to by the noble and learned Lord.

The Joint Committee concluded in paragraph 201 that, bearing in mind a degree of difference between the Speaker in the Commons and the Leader of the House here, the Leader of the House,
"would therefore probably be the appropriate person to exercise such a general power of waiver".
It is a very full, comprehensive document, and I shall not weary your Lordships with any further citation from it.

My Lords, the report of the Joint Select Committee is an eminent constitutional document to which we should pay tribute. But I think the noble and learned Lord will agree that it did not address the specific question which I ventured to raise before your Lordships.

My Lords, all the relevant issues were fully debated and discussed by the committee, which was chaired by the noble and learned Lord, Lord Nicholls of Birkenhead. The next step—I shall be as brief as possible, bearing in mind that we have other important business—was that on 4th April this year the Select Committee on Procedure discussed the issue. Present were the noble Lords, Lord Strathclyde, Lord Mackay of Ardbrecknish, Lord Henley, Lord Harris of Greenwich, Lord Rodgers of Quarry Bank, my noble friend the Leader of the House and myself. The Select Committee came to its decision. It made its recommendations to this House, and this House has already approved them. I repeat: I am simply moving today the mechanical device for giving effect to something that has already received assent.

The noble Baroness asked about the possibility of a difference of view between the Speaker and the Leader of the House. The possibility of a difference or divergence of view already exists. I stress: we are widening the opportunity for this House to discuss matters so that it is coterminous with the opportunities in another place for discussing similar topics.

The noble Lord, Lord Strathclyde, asked whether advice would be taken from the Clerks in cases of difficulty. That is the convention. The question of whether the Leader of the House would consult colleagues was raised. That is a matter for the Leader of the House on any particular occasion. If I may say so, there is a perfect analogy. The noble and learned Lord, Lord Simon of Glaisdale, referred to the position that I hold at the moment. He will know as well as I that, on occasions, an Attorney-General is entitled to seek the views of colleagues, but it is within his discretion as to whether he takes their views—and it is absolutely within his discretion as to whether he acts upon them. It is the Shawcross doctrine that in many circumstances an attorney will not wish to take the view of his colleagues but in many circumstances he would be a fool not to do so. That is quite blunt language.

I stress that all the issues have been gone into at great length and with great thoroughness, if I may respectfully say so, by the committee of the noble and learned Lord, Lord Nicholls. I think I have answered all the questions that have been raised.

My Lords, there is still the question of whether the Speaker requires 24 hours notice.

My Lords, the Speaker requires notice. Whether or not it is 24 hours, I do not know. I shall certainly make inquiries. I repeat: that is the present practice in this House. Nothing further is being introduced.

Perhaps I may make one final point. The noble Lord, Lord Strathclyde, rightly said that the Leader of the House has a number of obligations. So, of course, does he. On all these occasions we try to put our duties as servants of the House before any short-term partisan advantage. In the short time that I have been here—which is a favourite phrase for lawyers—I have never encountered, on any occasion, any decision made by any Leader of the House, of whatever political complexion, that suggested that their independence and regard for this House was in any way being impeached.

My Lords, during his very full contribution the noble and learned Lord, Lord Simon of Glaisdale, referred to the possibility of the Lord Chancellor having responsibility in this matter. Admittedly, the Lord Chancellor's duties are not strictly analogous with those of the Speaker of the House of Commons, but the Lord Chancellor has—I have mentioned this on several occasions—the unusual opportunity within our constitution of helping to co-ordinate the legislative, judicial and executive responsibilities of Parliament and of the Government. Would it not be a good solution if, instead of the Speaker having this responsibility, the duty fell upon the Lord Chancellor?

My Lords, I do not know whether I should ask my question now or wait until the noble and learned Lord has responded to the noble Lord, Lord Renton.

Let us assume that "Lady Jayclyde" or "Lord Cranby" are Leaders of the House. It seems to me that if this privilege is given to them—and to them alone—we will be reducing the powers of Parliament as a whole. This is a tendency which has gone on too long and too much. That is not a criticism on this issue of the noble Baroness, Lady Jay, the noble Lord, Lord Strathclyde or the noble Viscount, Lord Cranborne. If one takes power from the House and gives it to an individual, that will reduce the power of the House and increase the power of the executive. That is something that all Houses of Parliament allow at their peril.

My Lords, as a final comment before the noble and learned Lord sits down, may I venture to correct an inadvertent slip on his part? If I heard him aright, he said that the report of the Joint Select Committee was printed on 30th March of this year. It was of course printed on 30th March of last year. As a member of that committee I take an interest in this matter. At the rate of progress we are now making, it seems to me that all our recommendations will finally be considered some 52 years hence.

My Lords, the noble Lord said "a final comment". I therefore sail forward with every confidence that we are drawing to a conclusion.

The point made by the noble Earl, Lord Onslow, is mistaken. The Leader of the House presently has the discretion of which he speaks. The discretion vested—and which will remain vested—in the Leader of the House is to extend the privileges of your Lordships to discuss matters, not to limit them.

The noble Lord, Lord Renton, raised the question of whether or not it should be the Lord Chancellor who had this duty. I make two short points in regard to that. First, this matter was fully considered by the committee at paragraphs 200 and 201. As I said earlier, it came to the conclusion that the appropriate person, probably, was the Leader of the House. I have not had the opportunity to consult the noble and learned Lord the Lord Chancellor, but one has to bear in mind that he is at the apex of the judicial pyramid. When one is talking about questions of sub judice, I respectfully suggest that it seems more appropriate that the Leader of the House should have the discretion. To paraphrase one or two words I heard yesterday, it has worked very well in the past; there is no reason why it should not work well in the future.

On Question, Motion agreed to.